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R.D. Parmar Vs. Ahmedabad District Panchayat and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1980)21GLR93
AppellantR.D. Parmar
RespondentAhmedabad District Panchayat and ors.
Excerpt:
.....properly and validly selected by the board, for, though rule 3 of the gujarat panchayat service selections board (functions) rules, 1964 (hereinafter referred to as 'the said rules') clearly provides that selection to the post in question, which is one of the posts mentioned in the schedule annexed to the rules, could have been made by direct recruitment only after inviting applications by announcing in as many news-papers as considered necessary by the board, no such advertisement was issued prior to the selection of the fourth respondent and that, therefore, the selection being contrary to statutory rules was invalid. 6. the petitioner's contention that although his appointment was on a purely temporary basis, his services could not have been terminated arbitrarily is well-founded...........of the powers conferred by section 323 of the act, the government of gujarat has framed the rules. rule 3 thereof deals with direct recruitment. the opening words of the said rule make it clear that it is attracted when recruitment to any of the posts mentioned in the schedule is to be made by direct recruitment. it is not in dispute that the post of assistant instructor finds place in the schedule at item no. 42. there is no manner of doubt, therefore, that rule 3 would be attracted in the instant case. the material part of the rule to which reference needs to be made is sub-rule (2).it reads as under:(2) the board shall-(a) invite applications by announcing in as many news-papers as considered necessary by the board (out of which at least one news-paper being in gujarat!).....
Judgment:

P.D. Desai, J.

1. The petitioner was appointed as Assistant Instructor in a cotton weaving school run by the Ahmedabad District Panchayat (first respondent) at village Ranoda, Taluka Dholka, District Ahmedabad. The appointment was made on December 1, 1975 and the petitioner joined duty on December 2, 1975. The appointment was made by the Assistant Registrar of Co-operative Societies, Ahmedabad District Panchayat, on a purely temporary basis and the appointment was initially for a period of three months or until a candidate selected by the Gujarat Panchayat Service Selection Board (hereinafter referred to as 'the Board') became available, whichever, event occurred earlier. The appointment made accordingly was continued from time to time on the same terms and conditions till by an order made on May 4, 1978 (Annexure 'A') the petitioner's services were terminated and the fourth respondent was appointed to the post held by the petitioner as a candidate duly selected by the Board. It is this order terminating the services of the petitioner which is challenged in the present proceeding.

2. The main contention advanced on behalf of the petitioner was that though the petitioner was appointed on a purely temporary basis, the appointment was made to a post which was sanctioned by the State of Government under the power vested in it under the Gujarat Panchayats Act, 1961 (hereinafter referred to as 'the Act') and that if the appointment f order was read as a whole, it became clear that the services of the petitioner could not have been terminated arbitrarily and that they could have been terminated only if a duly qualified candidate selected by the Board became available or on any other valid grounds such as abolition of post or administrative exigency or even by way of a penal action. In the instant case, proceeded the argument, the termination was on the sole ground that a duly qualified candidate selected by the Board, namely, the fourth respondent, was available. The fourth respondent could not, however, be said to have been properly and validly selected by the Board, for, though Rule 3 of the Gujarat Panchayat Service Selections Board (Functions) Rules, 1964 (hereinafter referred to as 'the said Rules') clearly provides that selection to the post in question, which is one of the posts mentioned in the Schedule annexed to the Rules, could have been made by direct recruitment only after inviting applications by announcing in as many news-papers as considered necessary by the Board, no such advertisement was issued prior to the selection of the fourth respondent and that, therefore, the selection being contrary to statutory rules was invalid.

3. On behalf of the first respondent, Mr. V.M. Pathak, Assistant District Registrar of Co-operative Societies, has filed an affidavit-in-reply. In para 2 of the said affidavit, it has been stated that the services of the petitioner were terminated and appointment of the fourth respondent was made to the post in question on account of a communication received from the Board on April 28, 1978 informing that the Board had selected the fourth respondent for the said post. It is thus an undisputed fact that the only ground on which the petitioner's services have come to be terminated is that a candidate selected by the Board was available to fill the post.

4. On behalf of the Board, Miss K.B. Bakshi, Secretary of the Board, has filed an affidavit-in-reply. In para 5 of the affidavit it has been stated' that the Board has published an advertisement for recruitment to the post of Assistant Instructor on September 21, 1973 and that the fourth respondent had applied in response to the said advertisement. The application of the fourth respondent was considered and he was selected and the Board's recommendations were communicated to the competent authority which gave appointment to the fourth respondent to the post in question Under the circumstances, according to the Board, the selection of the fourth respondent was validly made in due compliance with Rule 3 of the Rules. What emerges from the affidavit filed on behalf of the Board therefore, is that the fourth respondent came to be selected in 1978 in pursuance of an advertisement issued in 1973. No advertisement, therefore was issued at a point of time reasonably prior to the actual date of selection. The advertisement was issued nearly 4/2 years before the selection came to be made.

5. The question, which arises against the aforesaid background is whether the services of the petitioner could have been validly terminated and the appointment of the fourth respondent could have been properly made to the post in question, having regard to all the material facts and circumstances of the case.

6. The petitioner's contention that although his appointment was on a purely temporary basis, his services could not have been terminated arbitrarily is well-founded. If the appointment orders issued from time to time are read as a whole and in juxtaposition with the the prevailing circumstances, it become clear that though the appointment was made on a temporary basis, the services of the petitioner were not to be terminated except on the ground that a duly qualified candidate selected by the Board was available or on any other valid ground such as abolition of post or administrative exigency or by way of a penal action. It is an admitted position in the instant case that the service of the petitioner came to be terminated only on the ground of the availability of a duly qualified candidate selected by the Board, namely, the fourth respondent, and that the termination was not on any other ground. It is in this context that the question whether the selection of the fourth respondent by the Board was valid becomes relevant and assumes importance.

7. In exercise of the powers conferred by Section 323 of the Act, the Government of Gujarat has framed the Rules. Rule 3 thereof deals with direct recruitment. The opening words of the said Rule make it clear that it is attracted when recruitment to any of the posts mentioned in the Schedule is to be made by direct recruitment. It is not in dispute that the post of Assistant Instructor finds place in the Schedule at item No. 42. There is no manner of doubt, therefore, that Rule 3 would be attracted in the instant case. The material part of the Rule to which reference needs to be made is Sub-rule (2).

It reads as under:

(2) The Board shall-

(a) invite applications by announcing in as many news-papers as considered necessary by the Board (out of which at least one news-paper being in Gujarat!) circulating in the area concerned, the qualifications, required to be possessed by the candidates and the number of vacancies to be filled in;

(b) consider all applications and recommendations received, and

(i) where a qualifying written examination for recruitment is prescribed under the rules framed under Sub-section (3) of Section 203 of the Act or otherwise, hold such examination for the candidates who possess the requisite qualifications and are prima facie eligible and interview such of the candidates as may qualify in the written examination according to the standard laid down in such rules and-

(ii) where no qualifying written examination is prescribed, interview such of the I candidates as are eligible for appointment to the posts, and

(c) forward to the Panchayat concerned the names of the candidates selected according to the result of the written examination and interview or as the case may be, the interview, only, arranged in order of merit or preference and wherever it thinks fit, recommend advance increments to any of the candidates giving reasons therefor.

It is clear on a bare perusal of Clauses (a) and (b) of Sub-rule (2) of Rule 3 that the Board has been statutorily enjoined to invite applications I for a post included in the Schedule by announcing in as many newspapers as considered necessary by the Board (out of which at least one news-paper being in Gujarati) circulating in the area concerned, the qualifications required to be possessed by the candidates and the number of vacancies to be filled in and to consider all applications and recommendations received. Under Clause (c) the Board is statutorily enjoined to forward to the panchayat concerned the names of the selected candidates arranged in If order of merit or preference.

8. The provisions of Rule 3 are obviously mandatory not only having regard to the language in which they are couched but also in view of the nature, design and object underlying the provisions and consequences which are likely to ensue if those provisions are construed as directory Sub-rule (2) opens with the words 'The Board shall' and then folios Clauses (a), (b) and (c). The phraseology of the provision clearly indicates that it is mandatory. Besides, the object of the enactment of the Rule is likely to be defeated if it is held to be directory. The object, purpose and design behind the enactment of Rule 3 is to ensure that selection to fill a post in the Panchayat Service is made from the best available material and from a wide area of choice and also to give an equal opportunity to all qualified candidates to compete for selection for the post. It is with a view to attaining this salutary object that inviting application by advertisement in 'as many newspapers as considered necessary by the Board (out of which at least one news-paper being in Gujarati) circulating in the area concerned 'has been made a condition precedent to the selection for any post which is required to be filled by direct recruitment. Unless strict compliance at least with this part of Rule 3 is insisted upon, in all probability, the competitive process of selection by the Board might turn out to be no better substitute than individual selection and the laudable purpose of the enactment might fail. In my opinion, therefore, the material provision must be held to be mandatory.

9. The question then is whether this requirement has been complied with in the instant case. It is true that this is not a case where no advertisement whatever was issued for the post in question. An advertisement was, in fact, issued in September 1973 and the fourth respondent applied in response thereto, but for some reason or the other, which is not discernible from the material on record, no selection came to be made within a reasonable time after the issuance of the advertisement. The selection was ultimately made in April 1978. It is manifest, therefore, that at a point of time reasonably anterior to the selection of the fourth respondent no advertisement was issued and that his selection was made on the basis of an advertisement issued nearly four and half year earlier. The question, therefore, ultimately boils down to this: Is it necessary for the purposes of due compliance with Rule 3(2)(a) that the announcement in newspapers inviting applications should be made by the Board at a paint of time which is reasonably anterior or prior to the date of selection?

10. In order that the object and purpose behind the enactment of the provision relating to the issuance of an advertisement, as explained above, can be really fulfilled, it is essential, in my opinion, to read by implication into the material provision the requirement of issuing such advertisement at a point of time reasonably anterior to the date of selection. If an advertisement issued long prior to the date of selection is treated as an announcement in due compliance with the material part of Rule 3, it might work injustice and hardship and operate discriminatorily and bring about ultimate frustration of the object behind the Rule. It is not uncommon to find that for most of the public posts the age of recruitment is fixed under the relevant recruitment rules. Similarly, almost in all recruitment rules relating to public posts certain minimum qualifications are prescribed. If an announcement inviting applications is made years before the selection is actually made, many persons who might have meanwhile become eligible for being appointed both from the point of view of age and qualification would have no chance of applying and being considered for direct recruitment. Conversely, a person who, when he applied, was not overage might lose the chance of competing for appointment if by the time the selection is made he has crossed the age limit, provided, of course, under the relevant recruitment rules, age has reference to the date of appointment. Some of the persons who might have applied might meanwhile have found another employment and they might not be any longer interested in competing for the post in question. If, in a given case, there are persons belonging to both these categories, then, the area of choice itself might get unduly restricted, with the result that the best material may not be found even; by resorting to direct selection by process of inviting applications by advertisement. Having regard to all these considerations, it appears to me that in order that the provisions of Clause (a) of Sub-rule (2) of Rule 3 effectuates the object behind its enactment, it would be necessary to read into it by implication the requirement that the advertisement thereunder should be issued at a point of time reasonably prior to the date of selection. As to what would amount to reasonable period will, of course, depend upon the facts of each case and the question will have to be resolved in the light of the facts and circumstances obtaining in each case.

11. So far as the present case is concerned, there has been ail inordinately long time-lag between the date of the advertisement and the date of selection. Nearly four and half years have elapsed between the occurrence of the two events. Such a long interval of time cannot possibly be looked upon as a reasonable time-lag. Consequently, it will have It to be held that the advertisement issued in September 1973 cannot be treated as an announcement in compliance with Clause (a) of Sub-rule 1(2) of Rule 3 and it will have to be excluded from consideration. As further consequence, it will have to be held that no advertisement if required by statutory rules was issued prior to the selection of the fourth respondent and that, therefore, the selection was vitiated as being contrary to mandatory provisions of Clause (a) of Sub-rule (2) of Rule 3 of the Rules. The petitioner could not, therefore, have been displaced to make room for the fourth respondent and his service could not have beta terminated on the ground of the availability of a duly qualified candidate selected by the Board.

12. The foregoing discussion would show that the impugned order terminating the service of the petitioner is not sustainable and that will have to be quashed and set aside.

In the result, the Writ Petition succeeds and it is allowed. The impugned order is quashed and set aside. The petitioner has continued to hold the post in question by an interim order of this Court. As a result of the decision rendered herein, he will be deemed to have continued to hold the post as if the order of termination was not passed. Rule is accordingly made absolute with no order as to costs.


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